People v. Heath

• Decision Date: 31 January 1989
• Docket Number: No. F009165,F009165
• Citation: 255 Cal.Rptr. 120,207 Cal.App.3d 892
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Matt J. HEATH, Defendant and Appellant.

Page 120

255 Cal.Rptr. 120

207 Cal.App.3d 892

The PEOPLE, Plaintiff and Respondent, v. Matt J. HEATH, Defendant and Appellant.

No. F009165.

Court of Appeal, Fifth District, California.

Jan. 31, 1989.

Certified for Partial Publication ^*

Review Denied May 4, 1989.

[207 Cal.App.3d 894] Terrence M. Van Becker, Walnut Creek, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Michael J. Weinberger and Thomas Y. Shigemoto, Sacramento, for plaintiff and respondent.

OPINION

BAXTER, Associate Justice.

STATEMENT OF THE CASE

On March 10, 1987, appellant Matt Heath was charged with one count of burglary in the first degree (Pen.Code, § 459). He was arraigned on March 11, 1987, and had a deputy public defender appointed to represent him. He pled not guilty to the charge, and a jury trial was held. Appellant was found guilty after a one and one-half day jury trial. The jury deliberated 25 minutes.

Appellant reappeared for sentencing on September 1, 1987. The court denied probation and sentenced him to state prison for the mid-term of four years with credit given for time served. A restitution fine of $1,000 was imposed pursuant to Government Code section 13967. The sentencing court also found appellant had the present financial ability to pay $1,000 in attorney fees.

On September 1, 1987, appellant timely filed his notice of appeal.

STATEMENT OF FACTS

At 8 a.m. on February 10, 1987, Mr. and Mrs. Henry King left their Farmersville residence to drive into Fresno. At approximately 9:10 a.m., Tulare County Deputy Sheriff Mike Renteria responded to a silent alarm at the King residence, observed appellant leaving the house through a broken window, and apprehended him at the scene. Appellant was in possession of coins, jewelry, and a jewelry bag that were taken from the residence.

Appellant admitted committing the burglary to the investigating officers. Sergeant John Zapalac testified that appellant told him that he had acted alone but that Darryl Sodersten had dropped him off in front of the house and told him to break in. Appellant did not tell the officers that he was threatened or forced to commit the burglary.

The prosecutor introduced evidence that appellant, prior to perpetrating this burglary, removed a canvas covering a vehicle in the driveway and a sleeping bag that was kept in a storage shed so as to stake out the residence until its inhabitants left. Sergeant Zapalac testified that he believed appellant first broke into the storage shed, removed the sleeping bag, and spent the night near the house waiting for the Kings to leave. There were shoe tracks indicating that possibly three trips were made between the storage shed and the house. Sergeant Zapalac observed dirt on appellant's shoes and noted that his shoes were similar to the tracks near the sleeping bag.

Appellant raises the following issues for discussion on appeal.

DISCUSSION

I. WAS IT REVERSIBLE ERROR TO INSTRUCT ON THE DEFENSES OF DURESS AND NECESSITY?

Appellant admitted at trial that he committed the burglary. His defense was that Darryl Sodersten threatened to kill him if he did not commit the burglary.

Appellant's testimony in support of his defense was as follows: He had purchased cocaine on credit from Darryl Sodersten and owed him approximately $400. The night before the burglary appellant paid him $30 and accompanied Sodersten and Mark Demeers in Sodersten's truck for a night of drinking and taking drugs. They drove around for nearly five hours until about 2 a.m. or 3 a.m. when Sodersten started talking about appellant committing a burglary to repay him. Sodersten drove to the King residence, pointed a loaded gun at appellant, and threatened to kill him and throw his body into a ditch if he refused to commit the burglary. Appellant walked toward the house, threw a metal planter through the window, noted that Sodersten and Demeers were watching him, and committed the burglary. He was in the house 10 to 15 minutes and was apprehended by Deputy Renteria shortly after exiting the broken window.

The trial court gave the standard duress instruction, CALJIC No. 4.40, to which there was no objection. It provides, as follows:

"A person is not guilty of a crime when he engages in conduct, otherwise criminal, when acting under threats and menaces under the following circumstances:

"1. Where the threats and menaces are such that they would cause a reasonable person to fear that his life would be in immediate danger if he did not engage in the conduct charged, and

"2. If such person then believed that his life would be so endangered.

"This rule does not apply to threats, menaces, and fear of future danger to his life."

Over appellant's objection, the court gave a special instruction requested by the prosecutor based on People v. Pena (1983) 149 Cal.App.3d Supp. 14, 197 Cal.Rptr. 264. It provides as follows:

"The following requirements have been held to be prerequisites to the establishment of the defense of justification or duress:

"One, the act charged as criminal must have been done to prevent a significant evil;

"Two, there must have been no adequate alternative to the commission of that act;

"Three, the harm caused by the act must not be disproportionate to the harm avoided;

"Four, the accused must entertain a good faith belief that his act was necessary to prevent the greater harm;

"Five, such belief must be objectively reasonable under all of the circumstances; and,

"Six, the accused must not have substantially contributed to the creation of the emergency."

Appellant contends that the special instruction referred to as "justification/duress" is actually a statement of the defense of necessity and misled the jury as to the correct elements of the proffered duress defense contained in CALJIC No. 4.40.

An analysis of appellant's contention requires three inquiries: (1) the basis of the special instruction; (2) the differences between the duress and necessity defenses; and (3) the possible effect of any instructional error.

A. The Pena Instruction

The special instruction requested by the prosecution was taken entirely from People v. Pena, supra, 149 Cal.App.3d Supp. 14, 25-26, 197 Cal.Rptr. 264, in which a defendant charged with misdemeanor drunk driving was denied an instruction that he drove the car in the good faith belief that his girlfriend might be in physical danger and he might need to protect her. The danger he perceived was from a police officer who searched her and drove her home. The circumstances of the search and transportation were sufficiently peculiar to warrant an instruction on the necessity defense.

Pena launches into its discussion with this caveat:

"In this opinion, 'duress' is used interchangeably with terms such as 'coercion,' 'compulsion,' 'necessity' or 'justification.' Although there are some distinctions, they are not material for purposes of this opinion." (Id. at 149 Cal.App.3d Supp. p. 17, fn. 2, 197 Cal.Rptr. 264.)

Pena then discusses the differences between duress and necessity and cites several cases regarding "the applicability of the duress defense," such as People v. Lovercamp (1974) 43 Cal.App.3d 823, 118 Cal.Rptr. 110. (People v. Pena, supra, 149 Cal.App.3d Supp. 14, 22, 197 Cal.Rptr. 264.) The problem, however, is that Lovercamp describes itself (and is recognized) as establishing the "necessity" defense in the context of prison escape. (People v. Lovercamp, supra, 43 Cal.App.3d 823, 831, 118 Cal.Rptr. 110; In re Weller (1985) 164 Cal.App.3d 44, 46, 210 Cal.Rptr. 130.) Pena continues its discussion and development of "duress" while citing for support various cases which themselves involve "necessity." (People v. Patrick (1981) 126 Cal.App.3d 952, 179 Cal.Rptr. 276; Cleveland v. Municipality of Anchorage (Alaska 1981) 631 P.2d 1073, 1078.)

Pena reaches two conclusions. First, it finds duress an appropriate defense for a defendant who commits an unlawful act in an effort to prevent imminent harm to a third party. Pena 's first conclusion is based on an analysis of cases and statutes which properly discuss the duress defense. (149 Cal.App.3d at supp. p. 23, 197 Cal.Rptr. 264.)

Pena 's second holding is to state a six-part test for what it refers to as the "justification/duress" defense. The problem with this six-part test is that it is based entirely on case law describing the elements of the necessity defense. The requirements of the Pena defense and special instruction given herein are:

"1. The act charged as criminal must have been done to prevent a significant evil;

"2. There must have been no adequate alternative to the commission of the act;

"3. The harm caused by the act must not be disproportionate to the harm avoided;

"4. The accused must entertain a good-faith belief that his act was necessary to prevent the greater harm;

"5. Such belief must be objectively reasonable under all the circumstances; and

"6. The accused must not have substantially contributed to the creation of the emergency." (Id. at 149 Cal.App.3d Supp. pp. 25-26, 197 Cal.Rptr. 264, fns. omitted.)

Pena 's discussion of this test is followed by numerous citations in support of each element. The first, second and third requirements are from Cleveland v. Municipality of Anchorage, supra, 631 P.2d 1073, 1078, and described as the "three essential elements" for the defense of necessity. Pena then cites People v. Patrick, supra, 126 Cal.App.3d 952, 960-962, for the fourth and sixth requirements. Patrick, however, also limits its discussion to the elements of the necessity defense. All six of the requirements are discussed as elements of necessity in a law review article cited by Pena. (People v. Pena, supra, 149 Cal.App.3d Supp. 14, 23, 197 Cal.Rptr. 264, citing Conde, Necessity Defined: A New Role in the Criminal Defense System (1981) 29 UCLA L.Rev. 409, 438-439.)

Pena concludes its discussion by weaving these requirements into the statutory definition of...